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The Hong Kong Joint Council of The Hong Kong Joint Council of Parents of Mentally HandicappedParents of Mentally Handicapped

Guardianship Guardianship

13 June 2006, Tuesday13 June 2006, Tuesday

Presented byPresented by Mr Charles CHIU Chung-yeeMr Charles CHIU Chung-yeeChairpersonChairperson

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I. Introduction

an independent quasi-judicial tribunal

adults

personal circumstances

mental incapacity

1 February 1999

Panel A, Panel B & Panel C

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Reasons for Normal guardianship applications in 2005

No. of Normal applications in 2005 is 258.

21.6

2.0

13.6

58.8

3.0 0.5 0.5

0

10

20

30

40

50

60

No. of cases

Residence Welfare Consent totreatemnt

Finance Suspectedfinanceabuse

Crossborder

Familyconflict

Reasons

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Statistical Analysis of Application and Orders1 January to 31 December 2005

Types of Disability (Normal and EGO) No. of normal applications for 2005 is 258 & EGO is 3.

7.7 6.5

44.1

34.9

6.9

0

5

10

15

20

25

30

35

40

45

%

Mental illness Mental handicap Stroke/CVA/Vasculardementia

Dementia(Alz./Senile/Pre-

senile)

Others (includingaccident)

Type of disability

(18)

(91)

(115)

(17)(20)

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Statistical Analysis of Application and Orders1 January 2003 to 31 December 2005

Distribution of Disability (Normal & EGO) (Comparison of Years 2003 to 2005)

No. of Normal & EGO applications: 234 (2003); 299 (2004); 261 (2005)

10.79.4

40.2

34.2

5.6

9.77.0

38.1

32.8

12.4

7.7 6.5

44.1

34.9

6.9

0.0

5.0

10.0

15.0

20.0

25.0

30.0

35.0

40.0

45.0

50.0

Mental illness Mental handicap Stroke/CVA/Vasculardementia

Dementia(Alz./Senile/Pre-senile)

Others (includingaccident)

Types of Disability

Per

cen

tag

e %

200320042005

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II. Application

Mentally handicapped

Mentally disordered (patient)

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III. The Legal FrameworkIII. The Legal Framework

Mental handicapMental handicap

sub-average general intellectual sub-average general intellectual functioningfunctioning

withwith deficiencies in adaptive deficiencies in adaptive behaviour behaviour

IQ of 70 or below (Wechsler IQ of 70 or below (Wechsler Intelligence Scales)Intelligence Scales)

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Mental disorderMental disorder

mental illness;mental illness;

state of arrested or incomplete state of arrested or incomplete development, associated with development, associated with abnormally aggressive or seriously abnormally aggressive or seriously irresponsible conduct;irresponsible conduct;

psychopathic disorder;psychopathic disorder;

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Any other disorder (dementia, head Any other disorder (dementia, head injuries, stroke)injuries, stroke)

N.B.N.B.

Mental Capacity Act (UK-2005) – no Mental Capacity Act (UK-2005) – no longer defining categories of patients or longer defining categories of patients or handicap (c.f. s.2 (2) & s.3 of Mental handicap (c.f. s.2 (2) & s.3 of Mental Health Act 1983 which sets out a list of Health Act 1983 which sets out a list of disorders)disorders)

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Functions of the Guardianship Functions of the Guardianship BoardBoard

Section 59KSection 59K

to make guardianship orders;to make guardianship orders;

to make emergency guardianship to make emergency guardianship orders;orders;

review guardianship orders;review guardianship orders;

give directionsgive directions

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Principles: section 59K(2)Principles: section 59K(2)

interests of the mentally interests of the mentally incapacitated person are promotedincapacitated person are promoted

overriding his views and wishesoverriding his views and wishes

his views and wishes are (if his views and wishes are (if ascertained) respected ascertained) respected

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Criteria: section 59O(3)Criteria: section 59O(3)

a nature or degree, which warrants his a nature or degree, which warrants his reception into guardianship;reception into guardianship;

limits him in making reasonable limits him in making reasonable decisions about all, or most of his decisions about all, or most of his personal circumstances;personal circumstances;

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Criteria: section 59O(3) (Con’t)Criteria: section 59O(3) (Con’t)

need may need may onlyonly be met by be met by guardianship, no other less restrictive guardianship, no other less restrictive or intrusive means;or intrusive means;

in the interest of his welfare, or the in the interest of his welfare, or the protection of protection of othersothers..

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Suitable guardians: S.59SSuitable guardians: S.59S

applicant can nominate himself or a applicant can nominate himself or a person; orperson; or

nominate the Director of Social nominate the Director of Social Welfare;Welfare;

suitability criteria: -suitability criteria: -

capable of taking care;capable of taking care; personality is compatiblepersonality is compatible

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suitability criteria (con’t): -suitability criteria (con’t): -

no undue conflict of interest, no undue conflict of interest, financial nature; financial nature;

promote the interests, including promote the interests, including overriding his views and wishes;overriding his views and wishes;

consented in writing to act (if consented in writing to act (if private);private);

18 years or above; 18 years or above; andand no “appropriate” person, Director no “appropriate” person, Director

of Social Welfare.of Social Welfare.

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Guardian’s powersGuardian’s powers

residereside

convey to specified place, convey to specified place, reasonable forcereasonable force

attend as specified for treatment, attend as specified for treatment, occupation, education or trainingoccupation, education or training

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give consent to medical or dental give consent to medical or dental treatment treatment

access to him: any doctor, access to him: any doctor, approved social worker or other approved social worker or other person specified in the person specified in the Guardianship OrderGuardianship Order

hold, receive or pay a monthly hold, receive or pay a monthly sum (currently a max. of sum (currently a max. of HK$10,000) for maintenance and HK$10,000) for maintenance and benefitbenefit

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The last resort & Human RightsThe last resort & Human Rights

Assessing on “Need” basis;Assessing on “Need” basis;

not all mentally incapacitated persons not all mentally incapacitated persons need guardianship;need guardianship;

only when informal arrangements are only when informal arrangements are not working: -not working: -

suffering from, at risk of abuse, suffering from, at risk of abuse, neglect, self neglect or exploitation or neglect, self neglect or exploitation or a danger to his health;a danger to his health;

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where informal arrangements are not where informal arrangements are not working (Con’t): -working (Con’t): -

conflicts between the mentally conflicts between the mentally incapacitated person and his incapacitated person and his relatives or service providers;relatives or service providers;

family dispute results in family dispute results in inappropriate accommodation;inappropriate accommodation;

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where informal arrangements are not where informal arrangements are not working (Con’t): -working (Con’t): -

mentally incapacitated person mentally incapacitated person objects to his care or treatment;objects to his care or treatment;

despite Part IVC of the Mental despite Part IVC of the Mental Health Ordinance, the doctor Health Ordinance, the doctor declines to give non-urgent declines to give non-urgent medical treatment to him.medical treatment to him.

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IV. Emergency Guardianship OrderIV. Emergency Guardianship Order

• Section 59QSection 59Q

– is in danger, or is being, or likely to be maltreated or exploited;

– incapable of making reasonable decisions;

– it is necessary to make immediate provision to protect that person.

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• Proper use: “immediate” need – “VP Proper use: “immediate” need – “VP shunt” caseshunt” case

• Rules do not set out proceduresRules do not set out procedures

• Case summary if case is a known Case summary if case is a known casecase

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Finances IFinances I

• Estate of parentsEstate of parents

If intestate, Official Solicitor as judicial If intestate, Official Solicitor as judicial trustee and administrator (guardians ttrustee and administrator (guardians to assist)o assist)

• Substantial sum / estate obtainedSubstantial sum / estate obtained

(1)(1) Guardianship, and / orGuardianship, and / or

(2)(2) Part II OrderPart II Order

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Finances IIFinances II

• Informal arrangements (auto-pay)Informal arrangements (auto-pay)

• AppointeeshipAppointeeship

• Will of parentsWill of parents

• Parents may make an EPOAParents may make an EPOA

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CASE EXAMPLESCASE EXAMPLES

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Case summary - Case 1Case summary - Case 1

Male / 20Male / 20

Mild to moderate deficiency and Mild to moderate deficiency and autistic (mother MI)autistic (mother MI)

Hostel and sheltered workshopHostel and sheltered workshop

Guardianship Order (2002) for Guardianship Order (2002) for managing father’s estatemanaging father’s estate

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Committee Order grantedCommittee Order granted

1st review: recommended to spend mo1st review: recommended to spend money for better personalised training & rney for better personalised training & rehabilitation programsehabilitation programs

Sex urge spotted on little girlSex urge spotted on little girl

2nd review nothing done2nd review nothing done

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Sought dischargeSought discharge

Sex urge escalated and caught by Sex urge escalated and caught by police 2 months before hearingpolice 2 months before hearing

Private clinical psychologist?Private clinical psychologist?

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Case summary - Case 2Case summary - Case 2

Male / 48Male / 48

Obsessive compulsive behaviour and Obsessive compulsive behaviour and schizotypal personality disorder – habischizotypal personality disorder – habit of hoarding and rubbish collectingt of hoarding and rubbish collecting

Half-way house and sheltered workshHalf-way house and sheltered workshopop

Guardianship Order (2004) for dental Guardianship Order (2004) for dental problem and managing financeproblem and managing finance

3131

Applicant and proposed guardian – Applicant and proposed guardian – elder brotherelder brother

The subject refused to take off the last The subject refused to take off the last tooth which was loosenedtooth which was loosened

The applicant claimed that the sister The applicant claimed that the sister mortgaged the Canada property of the mortgaged the Canada property of the subject (CAD$300,000) and failed to subject (CAD$300,000) and failed to repay the mortgagerepay the mortgage

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The elder sister also moved into the The elder sister also moved into the house of the subject, which left for him house of the subject, which left for him by late motherby late mother

Income of subject: (1) family trust Income of subject: (1) family trust $6,500, (2) salary $500 & (3) NDA $6,500, (2) salary $500 & (3) NDA $1,120$1,120

Subject preferred his friend to be the Subject preferred his friend to be the guardian, but the elder sister objectedguardian, but the elder sister objected

The applicant willing to be the guardian The applicant willing to be the guardian and subject agreedand subject agreed

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The applicant sold the subject’s The applicant sold the subject’s Canada property to repay the Canada property to repay the mortgagemortgage

Income of subject: (1) family trust Income of subject: (1) family trust $6,500, (2) salary $500 & (3) NDA $6,500, (2) salary $500 & (3) NDA $1,120$1,120

The Board appointed the applicant to The Board appointed the applicant to be the guardian with all powers for one be the guardian with all powers for one yearyear

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At review, the balance of the purchase At review, the balance of the purchase price of subject’s Canada property not price of subject’s Canada property not be paidbe paid

The subject not to use denture despite The subject not to use denture despite absence of all teethabsence of all teeth

The Board appointed the brother The Board appointed the brother continue to be the guardian and continue to be the guardian and advised the case officer to follow up advised the case officer to follow up with the sale of the propertywith the sale of the property

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Case summary - Case 3Case summary - Case 3

The CSF (VP) Shunt caseThe CSF (VP) Shunt case

Subject, 46-year-old woman, mental haSubject, 46-year-old woman, mental handicap, had a stroke and post-haemorrndicap, had a stroke and post-haemorrhagic hydrocephalushagic hydrocephalus

Required a CSF shunt operationRequired a CSF shunt operation

Relatives strongly refused operationRelatives strongly refused operation

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Doctor stated that subject needed Doctor stated that subject needed urgent CSF diversion surgeryurgent CSF diversion surgery

EGO and normal guardianship order EGO and normal guardianship order grantedgranted

Director of Social Welfare appointedDirector of Social Welfare appointed

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In review, subject’s recovered In review, subject’s recovered satisfactorily with good drug satisfactorily with good drug compliancecompliance

Adequate parental careAdequate parental care

Doctor & parent suggested non-Doctor & parent suggested non-renewalrenewal

Order not renewedOrder not renewed

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Case Summary 4Case Summary 4

Subject – severe Subject – severe mental handicapmental handicap, lived in , lived in hostel, mother is the appointee of CSSAhostel, mother is the appointee of CSSA

Need to receive dental treatmentNeed to receive dental treatment

Doctor said the subject not co-operative Doctor said the subject not co-operative and needed GA for examinationand needed GA for examination

Social worker filed applicationSocial worker filed application

Due to mother’s advancing age and health Due to mother’s advancing age and health condition, the Board appointed Director of condition, the Board appointed Director of Social Welfare as guardianSocial Welfare as guardian

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Case summary - Case 5Case summary - Case 5

Why doctor not use Part IVCWhy doctor not use Part IVC

Ms S - moderate mental handicapMs S - moderate mental handicap

need investigation and treatmentneed investigation and treatment

ascites and a suspected liver problemascites and a suspected liver problem

great need for further investigationgreat need for further investigation

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inflammatory disease or a malignancyinflammatory disease or a malignancy

Part IVC - emergency onlyPart IVC - emergency only

Part IVC to proceed with the investigatiPart IVC to proceed with the investigation?on?

a risk that the insertion of the instrumena risk that the insertion of the instrument to remove the fluidt to remove the fluid

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better that a guardian was appointed to better that a guardian was appointed to consentconsent

the doctor also explained that his unit the doctor also explained that his unit had problems in the pasthad problems in the past

Direction of Social Welfare appointedDirection of Social Welfare appointed

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Case Summary 6Case Summary 6

Subject – mental handicap and autism manSubject – mental handicap and autism man

Regular treatment for eyes, but no need to Regular treatment for eyes, but no need to receive operationreceive operation

Father worried that he cannot sign the Father worried that he cannot sign the consent form for his son, if he is not the consent form for his son, if he is not the guardianguardian

The Board appointed his father as guardian The Board appointed his father as guardian for one yearfor one year

4343

In review hearing, The Board noted In review hearing, The Board noted that subject was co-operative for that subject was co-operative for examination his eyes, and without examination his eyes, and without other health problem (include teeth)other health problem (include teeth)

Not review the OrderNot review the Order

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Case summary – Case 7Case summary – Case 7

A 36-year-old mental handicapA 36-year-old mental handicap

Subject – uterine fibroidSubject – uterine fibroid

Medical conference work out her future Medical conference work out her future medical treatment planmedical treatment plan

Director of Social Welfare as the Director of Social Welfare as the guardianguardian

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At the review hearing, seen options for At the review hearing, seen options for removal of the tumor through operation, removal of the tumor through operation, OROR

Removal of uterus WITH tumor Removal of uterus WITH tumor altogetheraltogether

Director of Social Welfare concluded Director of Social Welfare concluded that the removal of uterus with tumorthat the removal of uterus with tumor

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Operation was primarily intended for Operation was primarily intended for treatment the tumor (not a special treatment the tumor (not a special treatment)treatment)

Successful doneSuccessful done

Does not have other health problemDoes not have other health problem

Did NOT renew the orderDid NOT renew the order

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Case Summary – Case 8Case Summary – Case 8

Subject - mental handicap man, Subject - mental handicap man, suffering from epilepsy & live in hostelsuffering from epilepsy & live in hostel

Frequent and unpredictable epileptic Frequent and unpredictable epileptic attacks, lower limb weakness, easily attacks, lower limb weakness, easily falls onto the groundfalls onto the ground

Wearing protective helmetWearing protective helmet

Few years, sent to A&E over 10 timesFew years, sent to A&E over 10 times

4848

Last time, A&E doctor insisted to have Last time, A&E doctor insisted to have consent from the family members consent from the family members before arrangement of any stitching for before arrangement of any stitching for his wound. The doctor refused to use his wound. The doctor refused to use Part IVC as stitching is not a must and Part IVC as stitching is not a must and just a better choice to help his recovery.just a better choice to help his recovery.

Elderly mother, lived far away, rush to Elderly mother, lived far away, rush to hospital to sign consent formhospital to sign consent form

Hostel social worker filed the Hostel social worker filed the application.application.

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As mother lived far away, she wished As mother lived far away, she wished the Director of Social Welfare to be the Director of Social Welfare to be the guardianthe guardian

The Board advised the attending The Board advised the attending doctors should attempt to seek doctors should attempt to seek consent directly from the subject firstconsent directly from the subject first

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THANKING YOUTHANKING YOU

Copyright of the Guardianship Board Hong KonCopyright of the Guardianship Board Hong Kong 2006. Reproduction of any part is allowed ong 2006. Reproduction of any part is allowed only with the written permission of the Guardiansly with the written permission of the Guardians

hip Board.hip Board.